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Tuesday, October 18, 2011

A moral and legal conundrum: justice for northern Uganda

How should we react to a rebel commander accused of multiple war crimes who says he has renounced his past? Prosecution or amnesty?

This conundrum relates to the recent legal action taken by one of the ex-LRA (Lord's Resistance Army) rebel commanders, Thomas Kwoyelo. Kwoyelo, a former colonel, took the Ugandan government to court seeking orders to compel the International Crimes Division of the High Court to stop his trial. He claimed that his continued detention 'traumatised and physically tortured him'. Last month the Constitutional Court ruled that Kwoyelo was entitled to receive an amnesty like others who have renounced rebel activities in the north. Kwoyelo had denounced the rebellion in January 2010.

What charges did Kwoyelo face? He was charged with 53 counts of murder, wilful killing, kidnap with intent to kill, aggravated robbery and destruction of property during an attack he commanded on a village in Amuru, northern Uganda, in 1999. Some of these offences were charged under the Geneva Conventions Act and others under the Penal Code of Uganda. We would be naive to think that that was the only occasion on which he killed civilians, but that was the evidence which formed the basis of the legal case. Tens of thousands of people died during the LRA's 20-year insurrection.

The Attorney General's Office and the Directorate of Public Prosecutions have contested the Amnesty Act (2000) which grants pardons to ex-combatants of rebel groups. In turn, the Uganda Amnesty Commission has asserted that these offices have a selective approach to justice and their actions could dissuade thousands of rebels from laying down their arms. President Museveni has said that all LRA combatants, most of whom were abducted as children and forced into rebellion, are eligible for amnesty. The only exceptions are the five rebel leaders (one of whom is now dead), including Kony, the LRA's charismatic leader. The International Criminal Court has issued warrants for the arrest of these leaders. Since 2000, 26,300 ex-rebels have benefited from the Amnesty Act, half of them from the LRA, a quarter from the West Nile Bank Front and the rest from smaller groups.

The question as to whether to offer war criminals amnesty is controversial. The Ugandan newspapers batted the issue about for some days. It is not just Uganda which has had to grapple with the problem. South Africa, for example, set up a peace and reconciliation process which it is said encouraged many perpetrators of war crimes to confess and even led to recovery of some human remains. Countries such as Sierra Leone and East Timor have set up reconciliation commissions. In Uganda itself, the amnesty was critical in leading to the surrender of the West Nile Bank Front.

However, an argument against blanket amnesty is that it removes the possibility of responding to individuals on a case by case basis. Some crimes are worse than others. Officers are more responsible than ordinary rebels.

Nevertheless, influential northern Ugandans have said that if it weren't for the amnesty, millions of people would still be living in IDP camps (for internally displaced people). They feel that peace should be prioritised and the issue of justice can come later. Acholi leaders have been responsible for supporting 'traditional' approaches to reconciliation when rebels return to their own villages. Just the other week the bishop of the Lira diocese urged the parents and students of St Mary's College Aboke to forgive the LRA rebels who abducted 139 girls in 1995. He said that forgiveness would enhance the process of reconciliation. 'We should not be prisoners of the past', he said. 'That would be like scratching the wounds.'

(I am not so sure about his next comments which were that Christians should not blame the government or the LRA for the abductions but to 'put their blame on evil spirits.' Uganda has more than enough trouble with evil spirits.)

So, how do we balance the call for forgiveness, restitution and reconciliation with the need for fairness and justice? As the court which released Kwoyelo said, 'Justice is an important part of building sustainable peace'.

The UN has asserted that victims have a right to remedy and reparations. Avocats Sans Frontieres (ASF) has called for the Government of Uganda to set up accountability measures to accompany amnesty to ensure that the rights of the victims are also taken into account. ASF believes that 'limited amnesty' should only be granted to those who are least responsible. 'Justice should not be sacrificed on the altar of forgiveness.'

So where does that leave Thomas Kwoyelo, a commander responsible for many terrible crimes? Which was the right process to apply: prosecution or amnesty?

I wouldn't dream of making a judgement myself. This isn't my country, I haven't lived in northern Uganda or suffered like the people there and I don't know enough. However, the Kwoyelo case provides food for thought for us all. What do you think about it?

Oh, and by the way, Kwoyelo was abducted as a youngster of 13 by the rebels he ended up leading.

POSTCRIPT: Kwoyelo won his case on November 10th 2011. The International Crimes Division of teh High Court, sitting in Gulu, dismissed an application the State filed to block his release.

Supplementary background information: where are we now?

You probably already know that 100 'elite' USA green berets are coming to Uganda. Their mission is to act as advisers to the UPDF (Uganda's army: the Uganda People's Defence Force) to help them hunt down Kony and his senior leaders wherever they may be found. The special ops units are to be deployed in Uganda, South Sudan, the Central African Republic (CAR) and DR Congo (DRC), subject to the approval of their governments. The LRA rebels have terrorised, murdered, raped and kidnapped thousands of people in these four countries.

The LRA has not attacked Uganda itself since about 2006, following a ceasefire achieved through the Juba peace talks. However, in 2008 these peace talks fizzled out as Kony did not turn up to sign the agreement and shortly afterwards the LRA attacked a town in South Sudan. One of the issues was the warrants issued by the International Criminal Court which Kony insisted should be lifted if he was to sign the deal. Uganda had played along with Kony by offering to try him in a special court in Kampala. This was difficult as Uganda had never had a war crimes court and had no laws dealing with war crimes, crimes against humanity, sexual enslavement etc. (Child soldiers are a difficult issue for Uganda as the National Resistance Army under Museveni used child soldiers in the 1980s.) Since the debacle, Kony's rebels have carried on doing terrible things in DRC and CAR, and attacked a couple of villages in South Sudan only a month or two ago.This year alone, the LRA has killed about 140 people, and abducted 600 children and adults (Invisible Children).

In 2008, Uganda, DRC and South Sudan launched a joint offensive, code-named Operation Lightning Thunder, which has resulted in the killing or capture of many of the LRA's top commanders. The USA has provided significant support for this offensive. It has provided Uganda with Shs64.4 billion ($23 million) worth of non-lethal equipment. It also gave Shs12 billion ($4.4 million) of aid after six out of the eight UPDF helicopters broke down. The Ugandan armed forces have 4,000 troops deployed over an 800 mile area of DRC which has as good as no roads. The USA has pinpointed the CAR as the likely current location of Kony. Only a few days ago soldiers came so close to catching him that they interrupted him bathing, finding his basin of water and soap in a clearing. They had been minutes away.

It is thought that once Kony has been killed or captured, the LRA will collapse. Who knows?